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Family Law

Updated:

July 8, 2022

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Same-Sex Marriage - Is Gay Marriage Legal in Texas?

Yes! Marriage is 100% legal, recognized, and welcomed in Texas for lesbian, gay, bisexual, and transgender (LGBTQ+) couples. All marriage laws, as well as divorce laws, apply to all individuals in Texas regardless of their sexual orientation and gender identity or expression.

When did same-sex marriage become legal in the U.S.? 

Gay marriage became legal in Texas, and in all 50 states on June 26, 2015, when the Supreme Court of the United States (SCOTUS) made its decision in Obergefell v. Hodges.

What Is the Process of Getting Married for LGBT In Texas? 

The process for gay marriage in Texas is exactly the same for gay and LGBT couples as it is for opposite-sex couples. With marriage equality in all 50 states, there is no separate “gay marriage law”. Same-sex marriage is legal in Texas and everywhere in the United States. Getting married in Texas involves: 

  • Obtaining a marriage license from the county you wish to be married in. 
  • Completing a 72-hour waiting period (waivable for military personnel and those who complete a pre-marital education program).
  • Having your marriage ceremony.
  • Have your officiant return your marriage certificate to the county clerk promptly. 

A marriage license issued in Texas expires if a ceremony is not conducted before the 90th day after the date the license is issued (Texas Family Code § 2.201). 

Who Can Officiate a Marriage in Texas? 

Having a friend or family member officiate a marriage can be meaningful and special and many couples getting married ask how to get a license to perform marriages in Texas. Although some states have procedures for one-time officiants such as a “Deputy Marriage Commissioner for a Day”, Texas does not have a simple procedure available. In Texas, only certain persons are legally authorized to conduct wedding ceremonies. Officiants must qualify as an officer of a religious organization that is authorized by the organization to conduct a marriage ceremony. 

Becoming ordained can be accomplished fairly easily through various internet marriage ministries. Officiants must be 18 years old. Their primary responsibility is to complete the marriage license, confirm its validity, and return it to the county clerk that issued it within 10 days. 

Which Documents Do LGBT Couples Need to Get a Marriage License?

how many times can you get married in texas

Applicants over 18 wishing to get a marriage license must submit proof of identity and age. The Texas Family Code lists 19 acceptable documents including a driver’s license, a U.S. passport, a passport from a foreign country, a birth certificate, a motor vehicle certificate of title, a voter registration certificate, a pilot’s license, or a license to carry a handgun.

How Many Times Can You Get Married in Texas? 

There is no limit in Texas to how many times you can get married, but you can only be married to one person at a time. You must be divorced before you can get married again. 

Are There Any Fees Associated with Obtaining a Marriage License in Texas?

Marriage licenses are issued by the county in Texas, and costs vary by county. Costs can be reduced by participating in Texas’s healthy marriage program - “Twogether in Texas”. Couples who complete a pre-marital education (available to all couples) are eligible to have up to $60 off their marriage license fee reduced, and the 72-hour hour waiting period may be waived. For example, in Dallas County, a marriage license is $81. If couples complete premarital education, the cost is just $21. Dallas County also offers an informal marriage license for $41 (informal marriage certificates are not available in every state). 

Do Both LGBT Partners Have to Apply for a Marriage License Together?

Whether opposite sex or same-sex marriage in Texas, both parties must be present to apply for a marriage license in Texas under Texas Family Code § 2.002.

However, an alternative process is available (Texas Family Code § 2.006) if one of the parties is not able to appear (for any reason). Any adult person or the other applicant may apply on behalf of the absent applicant. They must provide:

  • A notarized affidavit stating basic information and confirming that the applicant is not presently married has not been divorced within the last 30 days and is not presently delinquent on court-ordered child support.
  • Proof of the identity and age of the absent applicant. 

If both applicants are absent, they must submit an affidavit declaring that the applicants are a “member of the armed forces of the United States stationed in another country in support of combat or another military operation”. 

Same-Sex Marriage Challenges in Texas

domestic partnership texas

Despite marriage being legal in all 50 states, challenges for LGBT couples may exist. Unfortunately, discrimination still exists, violence is still a problem, and attacks against transgender individuals remain. 

What If I Am Not a Resident of Texas? 

Although you need to be a resident to file for a divorce in any county in Texas, there is no residency requirement to obtain a marriage license or get married. As long as you have obtained a marriage license, you can legally get married in Texas 

Should We Marry Again in Texas If We Were Married Outside of Texas?

Texas recognizes marriages conducted in any state or foreign country. It is not necessary to remarry in Texas if you were married outside of Texas. Gay marriage in Texas is legal no matter where you were married.

Do I Have to Change My Last Name? 

No, you are not required to change your name if you get married in Texas. You are free to keep your name or take your spouse’s name when you are married. Or you and your spouse can each change your name to a combined name. 

What If One or Both LGBT Partners Was Previously Married?

You can get married if either or both of you were previously married, as long as you aren’t still married. The only issue with a previous marriage is an immediate remarriage. Your divorce must be final 30 days before the marriage license application unless you are remarrying the person you just divorced.

This 30-day waiting period to remarry after a divorce is finalized is to give parties time to file an appeal. However, under Texas law, divorced spouses may remarry each other at any time. A judge may waive the 30-day waiting period if you file a motion to request (the former spouse’s consent is not necessary).

Can Same-Sex Couples Divorce? 

Yes, same-sex couples can divorce in Texas (and any other state). Texas Family Code requires that you are a resident of the county in which you file for divorce for at least 90 days and that you live in Texas for at least six months prior to filing the paperwork to end your marriage. If you recently moved to Texas and do not meet the residency requirements to divorce in Texas, it is possible that you can file for divorce in the county and state of your previous residence.

What Are the Alternatives to LGBT Marriage in Texas?

Some people prefer not to get married for some reasons, from witnessing a difficult marriage as a child, or previous experiences of their own. Others prefer not to make the commitment. Some alternatives to traditional LGBT marriage are available with various benefits: 

Common Law Wedding 

Two consenting adults can be married without obtaining a marriage license or even having a formal marriage ceremony. Texas is one of a few states which recognizes common law marriages as legal marriages - a status that originates from old English Law. Common Law marriages are referred to as “Informal Marriages” under Tex. Fam. Code §§ 2.401 and 2.402.

Domestic Partnership 

Prior to Obergefell v. Hodges in 2015, which made gay marriage legal in Texas and all 50 states, domestic partnership in Texas was widely used as an alternative to gay marriage in Texas. Although marriage is now available to all, many counties in Texas still offer and recognize domestic partnerships instead of marriage.

Cohabitation Agreements 

The new type of pre-nup is the “no-nup” - a cohabitation agreement With changing attitudes towards marriage, some couples wish to live together in an intimate relationship and want the protections of a prenuptial agreement but specifically do not wish to get married. A “no-nup” agreement is a legal document that can set expectations for an arrangement and protect bank accounts, material goods, and other assets. Cohabitation agreements cannot cover child custody or support.

Texas Family Law Attorneys for Same-Sex and LGBT Couples

If you have questions about your options to protect your rights before, during, or after same-sex marriage in Texas, contact a family lawyer at Brooks & Radchenko. We handle prenuptial agreements, divorce proceedings, adoption, custody arrangements, and other family law matters for same-sex and LGBT couples. Contact us to get a consultation from a professional on our team.

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